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Gavino v. Queensberry

United States District Court, E.D. Virginia, Alexandria Division

June 10, 2015

Carlo Felizmenio Gavino, Jr., Plaintiff,
B. Queensberry, et al., Defendants.


T.S. ELLIS, III, District Judge.

Carlo Felizmenio Gavino, Jr., a Virginia inmate proceeding pro se, has filed a civil rights action, pursuant to 42 U.S.C. § 1983, alleging that defendants Lt. Bryan Queensberry and Sgt. Albert Vanderpool used excessive force against him, and that defendant Dorothy Hightower, R.N., showed deliberate indifference to his serious medical needs. Defendants have filed a Motion for Summary Judgment and a memorandum of law and affidavits to support their motion. Defendants also have provided plaintiff the notice required by Local Civil Rule 7(K) and Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Dkts. 53, 54. Plaintiff has submitted a response to the defendants' Motion. Dkt. 59.[1] Plaintiff has also filed a Request/Motion for Extension, in which he requests additional time to discover the addresses of defendants who have not yet been served. Dkt. 55. As the additional defendants are not necessary to adjudicate the merits of the case, plaintiff's Motion must be denied, and the additional defendants must be dismissed from this action. In addition, for the reasons that follow, the defendants' Motion for Summary Judgment must be granted.

I. Background

On August 1, 2012, plaintiff was released from segregation at Lawrenceville Correctional Center ("Lawrenceville") and returned to the general population. See Declaration by Carlo Felizmenio Gavino, Jr. ("Decl. 3") [Dkt. 3] ¶ 1.[2] When he arrived at his cell before the 5:30 p.m. count time, he realized that he did not have a mattress. Id. The building sergeant told plaintiff on multiple occasions that he would find a mattress for plaintiff. Id. ¶¶ 2-3. At 9:30 p.m., plaintiff was still waiting for a mattress. Id. ¶¶ 3-4. The sergeant told plaintiff to wait outside his cell while he went to look for a mattress, so plaintiff waited in the unit day room. Id. ¶¶ 6-7.

At this time, the correctional officers were beginning to change shifts. The control booth officer ordered plaintiff to return to his cell. Plaintiff "dismissed her, " as he was waiting for the sergeant to return. Id. ¶ 8. Another officer also told plaintiff to return to his cell, but he continued to wait for the sergeant to return. Id. ¶ 9. When the sergeant did return, he did not have a mattress for plaintiff. Id. ¶ 10. "Out of frustration, " plaintiff began to kick the door of the unit. Id. ¶ 11. The sergeant and other officers came into the unit, and plaintiff swore at the officers to leave him alone. Id. ¶ 12.

At approximately 10:15 p.m., an officer requested assistance in dealing with plaintiff. Defendant Queensberry responded as part of an emergency response team. See Defendants' Memorandum in Support of their Motion for Summary Judgment ("Defs.' Mem.") [Dkt. 54], Ex. B (Queensberry Aff.) ¶ 5. Queensberry gave plaintiff several orders to "cuff up" and to return to his cell.[3] Plaintiff refused each of these orders. Id. ¶ 7. Plaintiff evaded the officers' attempt to apprehend him and "began running around the pod." Id. ¶ 8. Queensberry and other officers eventually succeeded in bringing plaintiff to the ground and placing him in handcuffs. Id.

As the officers were attempting to apprehend him, plaintiff "was enveloped by extreme duress, " and attempted to avoid apprehension. Decl. 3 ¶ 17. As he was being handcuffed, plaintiff noticed that Queensberry was holding his right arm and twisting his wrist. Id. ¶ 18. In response, plaintiff "bent forward at [his] waist and pulled [his] arms in toward [his] body while moving in reverse." Id. ¶ 19. He also "launched a panicked flurry of strikes to [his] left side, " without any thought to who or what he might hit. Id. ¶¶ 21-22. Once plaintiff was on the floor and in a headlock, he "stopped struggling." Id. ¶¶ 23, 26. He then alleges that Queensberry pulled his right arm out perpendicular to his body and began to twist it until it snapped. Id. ¶¶ 25-26.

Once plaintiff had been handcuffed, correctional officers brought him to the medical department. On the way to medical, plaintiff repeatedly attempted to sit down, and eventually had to be carried. Defs.' Mem., Ex. B ¶ 10; Decl. 3 ¶¶ 30-31. Upon reaching medical, officers "dropped [him] face down on the examination table and put ankle shackles on [him]." Decl. 3 ¶ 32. Vanderpool allegedly placed the ankle shackles on plaintiff, and told him that he "[didn't] care if they're on right or not." Id. Nurse Segura then conducted a pre-segregation examination and treated several scratches and cuts. Id. ¶ 34. Plaintiff told Segura that he believed that his arm might be fractured because "numerous people fell on him." Defs.' Mem., Ex. H (Hightower Aff.) ¶ 8. Segura examined his arm, observed no visible injuries, and concluded that he was likely suffering from tissue damage. Decl. 3 ¶ 34; Defs.' Mem., Ex. I, at unnumbered page 10. Plaintiff declined to have Segura check his vital signs or to conduct a full pre-segregation evaluation. Decl. 3 ¶ 34; Defs. Mem., Ex. H ¶ 8.

When he arrived in segregation that night, plaintiff began to experience severe pain in his arm. His arm "was noticeably swollen, " and he experienced a "rapid twitching feeling... that hurt badly." Decl. 3 ¶ 37. His arm would then "contract hard" and "straighten involuntarily." He states that "it felt as if something was squeezing from all sides." Id. Plaintiff suffered from this pain all night and was unable to stand, sit, or lay down for any significant period of time. Id. The next morning, plaintiff submitted a request to see medical, but he was not contacted for several days. Id. ¶ 38. During these several days, plaintiff made himself a "makeshift sling" out of some ripped sheets and informed his family of the situation. Id. ¶ 39.

On August 6, 2012, plaintiff returned to medical and was examined by Nurse Jenkins. Defs. Mem., Ex. H ¶ 9. Jenkins examined plaintiff's arm and observed bruising. She did not observe any swelling, however, and found that plaintiff had full range of motion. Id. She prescribed 800 mg of Motrin for a period of five days, instructed plaintiff to keep his arm elevated and to periodically apply a warm compress. Id. Jenkins also told plaintiff to return to medical if the problem continued. Id.

Plaintiff states that Segura called him back to medical on August 8, 2012. Decl. 3 ¶ 41. There are no medical records documenting this visit, however. See, e.g., Defs.' Mem., Ex. H ¶ 10. Plaintiff states that, on this occasion, Segura informed him that plaintiff's father had repeatedly called requesting that plaintiff be examined by a doctor. Decl. 3 ¶ 41. Dr. Moreno allegedly examined plaintiff, noticed that his right arm was swollen, and told plaintiff that he was likely experiencing pain from tissue damage. Id. Moreno then told plaintiff that "he was going to go ahead and order [plaintiff] an x-ray anyway." The x-ray was allegedly scheduled for August 14, 2012. Id.

Medical records indicate that Dr. Moreno and Nurse Hightower examined plaintiff on August 15, 2012. Defs.' Mem., Ex. H ¶ 10. Plaintiff told Moreno and Hightower that he no longer believed that his arm was broken, but that he was still suffering from "mild to moderate pain" in his right arm and elbow. Id. Upon examination, Moreno found that plaintiff had normal strength and range of motion in his right arm; neither Hightower nor Moreno believed that plaintiff's arm was fractured. Id. Nevertheless, Moreno submitted an x-ray request and extended plaintiffs' Motrin prescription for an additional 30 days. Id. Plaintiff's x-ray was scheduled for August 21, 2012. Id. ¶ 11; Decl. 3 ¶ 44. Plaintiff was released from segregation on August 23, 2012. Decl. 3 ¶ 46.

Due to an unknown scheduling conflict, plaintiff did not receive an x-ray until August 27, 2012. Defs.' Mem., Ex. H ¶ 11; Decl. 3 ¶ 48. The x-ray revealed that plaintiff's right arm was fractured. Defs.' Mem., Ex. H ¶ 11. The next day, Moreno scheduled an appointment for plaintiff to meet with an outside orthopedist. Defs.' Mem, Ex. H ¶ 12. Plaintiff visited the orthopedist on August 29, 2012. The orthopedist told plaintiff that "not much could be done for [him] because with the amount of time that had already passed the bone had already begun healing." Decl. 3 ¶ 50. The orthopedist also provided plaintiff with a sling. Id. ¶ 51. Upon his return to Lawrenceville, plaintiff declined to receive additional pain medication. Defs.' Mem., Ex. H ¶ 13.

On October 22, 2012, Moreno ordered follow-up x-rays. Id. ¶ 14. Plaintiff received a follow-up x-ray on November 14, 2012, and returned to the orthopedist on December 4, 2012. Id. ¶ 15. The orthopedist informed plaintiff that his arm was healing well and permitted him to participate in all general activities. Decl. 3 ¶ 54. Moreno examined plaintiff again on December 7, 2012, and noted that his arm had healed. Defs.' Mem., Ex. H ¶ 15. Plaintiff states, however, that although his right arm is "fully functional, " he suffers from "tingling, aching, and throbbing sensations which at times can be painful." Decl. 3 ¶ ...

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